Walsh v KC & WL Brain Pty Ltd (No. 4) - [2024] NSWDC 199

District Court

New South Wales

Medium Neutral Citation: Walsh v KC & WL Brain Pty Ltd (No. 4) [2024] NSWDC 199
Hearing dates: 30 January 2024 - 2 February 2024
Date of orders: 2 February 2024
Decision date: 02 February 2024
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See par [141].

Catchwords:
Defendant did certain work and provided certain goods for Plaintiff - No agreed rate for charges - Claim by defendants for restitution - Quantum meruit - Rulings on 14 of the 15 claims made by Defendant.

Legislation Cited:
Nil.

Cases Cited:
Mann v Paterson Constructions Pty Ltd [2019] HCA 32, [203].

Texts Cited:
Nil.

Category: Consequential orders
Parties: Plaintiff – Alan David Walsh
Defendant – KC & WL Brain Pty Ltd
Representation:
Counsel:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.
Solicitors:
Plaintiff – Rural Law
Defendant – Walsh & Blair Solicitors

File Number(s): 2020/00107856
Publication restriction: Nil.

Judgment

Defendant’s Quantum Meruit Claim

HIS HONOUR: This week I am dealing with the claims made by the Defendant for work done on its behalf for the Plaintiff which can be shortly described as the Defendant's quantum meruit claim.

Item A1

The first item concerns the input of the Defendant in the harvest of the Hawker's wheat crop. The wheat crop was grown on a series of farms known as the Hawker Agglomeration and which was to be purchased by the Plaintiff from the Hawker brothers who owned that series of farms at the same time as he sold the Dalree property to the Defendant.
There is no dispute that the harvesting of the Hawker's wheat crop occurred over seven days between 21 and 24 December 2016 and then between 27 and 29 December 2016. There is also no dispute that there were two harvesting machines being utilised; one being driven by the Plaintiff, or his employee, and the other being driven by one of the members of the Brain family.
The machine being driven on behalf of the Defendant was a John Deere header known as a 9770 machine. I shall refer to that merely as the ‘John Deere machine’. The machine being driven by or on behalf of the Plaintiff was a Gleaner R62 header. That machine had been hired by the Plaintiff from CJ and LH Wiesner Pty Ltd of Walla Walla.
The invoice for the hire of that machine is annexed to the affidavit of the Plaintiff, Mr Alan David Walsh, sworn on 28 February 2022, which is Exhibit K. The relevant entry in the invoice from Wiesner's is this:

"Dry hire of Gleaner R62 header, 70 hours @ $260/hour special rate."

The amount charged was $20,020, which is inclusive of GST, meaning that the appropriate rate of hire prior to the addition of GST was $18,200.
An issue that arises is, what does the "70 hours" in that description mean? Does it mean 70 road hours? That is, 70 hours of the machine being driven? Or, does it mean 70 rotor hours?
According to the evidence given by Mr Brain yesterday, the rotor hours record the number of hours the machine is actually harvesting, rather than the number of hours that the machine is being driven. It represents the time when the header is engaged in harvesting the wheat.
The Plaintiff, himself, obviously did not know which measure the 70 hours in the description referred to when he swore Exhibit K. Paragraphs 9 and 10 of that Affidavit are these:

"9. If the agreement was for rotor hours, this equates to 12.70 tonnes per hour across the 70 hours that I was charged for.
10. If the agreement was for engine hours, the kilometres travelled by the header have to be taken into account. There was a total of around 11 hours driving which means that some 59 engine hours were spent harvesting, which equates to 15.12 tonnes per hour across the 59 hours of actual harvest work."

The reference to the number of tonnes per hour is a reference to the fact that the Plaintiff used this header not only to harvest the Hawker's wheat crop, but also the wheat crop at his property, Archdale, at Deniliquin.
He harvested 275.30 tonnes of wheat from Archdale and 620.37 tonnes of the Hawker's rice crop, the total of which was 1,240.74 tonnes. It is common ground that the Plaintiff or his employee harvested half of the Hawker's wheat crop and the other half was harvested by the Brains.
It appears to me to be more probable than not that the 70 hours referred to in the Wiesner's invoice are in fact rotor hours. If they were road hours that would mean that 59 engine hours were spent harvesting both the Hawker rice crop over seven days as well as the number of days it took to harvest the Archdale wheat crop. Unfortunately, Mr Walsh has not deposed to how long it took him to harvest the Archdale wheat crop. That becomes a matter for speculation, but it would have taken at least a day. So, eight days of harvest would not adequately be represented by 59 hours. I therefore accept that the 70 hours were rotor hours.
There are a number of different ways in which it is alleged that I should deal with the current claim. Mr Ken Bullen, the expert retained by the Plaintiff, in his report of 8 February 2022, stated that a contract harvesting rate of $14 per tonne for harvesting wheat was a commercially acceptable rate in 2016/17. On the other hand, the Defendant's expert, Mr Michael Ryan, in his report of 8 March 2021 accepted that a rate of $16 to $18 per tonne plus GST and fuel was a reasonable price for harvesting wheat.
The Plaintiff suggests that I should apply one of those rates. Applying the rate of $14 per tonne produces a total cost of $8,685.18 for the 620.37 tonnes of wheat harvested by the Defendant from the Hawker wheat crop. Applying the rate of $16 per tonne, the lower of the figures advocated by Mr Ryan, produces a total cost of $9,925.92. Applying the upper rate advocated by Mr Ryan of $18 per tonne produces a total cost of $11,166.66.
However, the Defendant does not claim any of those three sums, but claims $61,680 being the cost of 102.8 rotor hours on its John Deere Harvester at a rate of $600 per rotor hour.
The Defendant's submission in chief [MFI 12] is this:

"It is submitted that it was appropriate for the Brains to charge Mr Walsh for the harvest work they undertook to harvest the Hawkers wheat crop based on the rotor hours of $600 per hour having regard to the following evidence:
(a) Ken Bullen, Michael Ryan, and Rod Gribble all agree that $600 per rotor hour for a John Deere 9770 (as opposed to a rate per tonnage harvested), is an appropriate charge rate in circumstances where the conditions for harvesting wheat are unsatisfactory;
(b) Mr Brain gave evidence that the wheat crop was very light in yield, which meant the distance to travel to harvest the wheat was increased and takes longer to harvest as less grain is going into the header (transcript, 9 March 2022 pages 35 to 36);
(c) Caryn Plant [the Plaintiff's sister] gave evidence that Hawkers was a badly laid out property and was in a 'crap' condition which indicates that conditions were unsatisfactory for harvesting (transcript, 7 March 2022, page 86 to 87);
(d) Michael Ryan gave evidence that Hawker's contours made it more time consuming to harvest the crop (Court Book page 2371);
(e) Mr Brain gave evidence that the Hawker's wheat crop was difficult to harvest because he was harvesting around trees and on rough ground which meant the harvesting was slower and took longer (Mr Brain's affidavit dated 20 December 2021 at [97], Court Book Volume 4 page 1630);
(f) Mr Brain gave evidence that he read the header meter before starting and finishing work on the Hawker's wheat crop (Mr Brain's affidavit of 20 December 2021 at [47], page 1621 of Volume 4 of Court Book);
(g) Mr Brain kept contemporaneous records (log book, a copy which is at page 1223, Volume 3 Court Book) of the hours operated by the header whilst harvesting the wheat (Mr Brain's affidavit sworn 23 October 2020 at [56], Court Book page 967, Volume 3 of Court Book)."

The submission goes on to record other facts to which I have already referred.
In addition, Mr Brain gave evidence yesterday about the poor quality of the conditions for the harvesting of the Hawker wheat crop. According to Mr Brain, when the crop had been sown, the ground had been too wet which caused the paddock or paddocks in which the wheat was sown, to be irregular. He referred to wheel or tyre marks in the soil which were holding water in them. He also referred to the trees in the paddocks and the necessity to have to drive around them but as close to them as possible and that slowed down the rate of harvest. The paddocks were irregular, and it was necessary to harvest following the contours of slopes because the paddocks were not flat, nor were they square.
He referred to the rate of harvesting being abnormally slow. His remarks about the unsatisfactory nature of the Hawker's farm are confirmed by the evidence of Caryn Plant, albeit that she was only there for the harvesting of the Hawker rice crop, not for the harvesting of the Hawker wheat crop, but if the rice paddocks were in a parlous condition, or to use her word "crappy," one would expect the wheat paddocks to be in a similar state.
In his evidence yesterday, Mr Brain introduced the original records recording the rotor hours for the John Deere harvester. The original record is Exhibit 17. This is an old notebook issued by Elders, obviously to farmers, which has on the inside of the front cover, the calendar for the year 2006 and on the inside of the rear cover the calendar for the year of 2007. It commences with giving the details of Elders head offices in Australian States, some promotion of Elders products, their major wool location centres in mainland Australia, the school terms for each of the States and Territories for the year 2006, the public holidays for year 2006, then the “dressed weight price to live weight price conversion”, obviously referrable to the growing of stock; then breeding tables for sheep, goats, horses, cows, and pigs, and dogs. Then a handy measurement of different sorts of grains and live animal assessment guidelines; obviously with the view to the butchering of sheep and cattle. However, the majority of the notebook is blank pages.
In Exhibit 17 there is one page for the Hawker's wheat harvest, and another page for the Hawker's rice crop. The rest of the notebook is blank and obviously unused other than for the two pages noted. The first entry under the heading “Wheat Harvest Hawkers” was made by Ms Ellie Brain, the daughter of the principals of the Defendant, Mr and Mrs Brain. She wrote the heading and then the date 21/12/16 and recorded a reading of 851.7 rotor hours.
Other than some figures which are additions made by Ellie, the remaining entries were made by Mr Brain. Those entries are these:

"24/12/16 891.4 stop."
"30/12/16 891.4 start."
"6/1/17 954.5 stop."

Ellie has calculated the difference between the two stop and start dates and then added the total of those two figures which comes to 102.8.
Yesterday, Mr Brain gave most of his evidence in chief by way of an affidavit sworn on 6 June 2023, and that affidavit, which is Exhibit 16, contains this:

"5. Going back through the records of deliveries of the Hawker's wheat crop, I realise I made a mistake on one of the start dates. The log book records: '30/12/16 981.4 Start'. This is a mistake. The logbook should record '27/12/16 891.4 Start'.
6. I identified this mistake when I compared the log book to the dates recorded in the GrainCorp Grower Delivery Summary Report relating to the Hawker's wheat crop. This is Volume 3, pages 935 936 of the Court Book. This report identifies that the Hawker's wheat crop was harvested and delivered to GrainCorp's Coleambally depot between 21 24 December 2016 and then 27 29 December 2016.
7. I was present each day the Hawker's wheat crop was harvested. Our header was harvesting each day. The wheat was delivered to the GrainCorp Coleambally depot.
8. After we completed the harvest of the Hawker's wheat crop, we left the header at Hawker's. We also left two tractors, auger bin,
and the mother bin. We left it there because it was my daughter, Kimberley's 18th birthday on 31 December 2016. Then there was the holidays and we didn't want to be on the road while it was busy with holiday makers. We also had plenty of other work on watering maize and soy beans.
9. On 6 January 2017, I returned to Hawker's to remove these items and drive them back to our farm located at Farm 600, Graham Road, Coleambally. Moving the machinery is a big job involving between five six people. It requires two escort vehicles because the header is over width. The header can only travel at 30 kilometres/hour. The distance between Hawker's and Farm 600 is about 12-14 kilometres via Cadell Road, then Kidman Way, then onto Graham Road. Kidman Way is busy with traffic, being the main road between Jerilderie and Griffith."

In the following paragraph, Mr Brain attested to doing no other harvesting work on "winter crops" between 21 December and 6 January 2017. When being driven on the road, the rotor hours are not engaged because the machine is not actually harvesting. One can understand then that the end date being 6 January 2017 either when they entered the harvester to drive it from the Hawker farms or when they got it back to their home base on Graham Road.
The vice in Exhibit 17 is obviously the mistake of recording 30 December rather than 27 December. In cross examination, Mr Brain was forced to admit that the issue about this erroneous entry in what he says is a contemporaneous document was addressed by Mr Walsh in his affidavit of 16 February 2022 at [35] which can be found in Volume 3 of the Court Book at page 922. Mr Brain admitted that this discrepancy did not come to his attention until the time he swore the affidavit on 6 June 2023.
That it took Mr Brain some time to realise the problem posed by Exhibit 17 is understandable. In my primary judgment given on 3 March 2023, I said this at [14]:

"Mr Ken Brain attended Coleambally Central School, completing
year 10 at the age of 17 years. He has dyslexia. In cross examination what he said in his affidavits or was said in documents about which he was cross examined had to be read to him, not by him. Like Mr Walsh, Mr Brain worked in his youth on his father's holdings. At the age of 24 or 25 he married his wife on 11 March 1989."

I then go on to record other salient factors. However, Mr Brain may not have had his attention drawn to the discrepancy first identified by the Plaintiff. It is, in the circumstances, understandable and more understandable given the sheer volume of the material which originally was six lever arch binders being the "Court Book" but there have been many additional tenders since that time.
In it was suggested, very strenuously, to Mr Brain that Exhibit 17 was bogus, a document concocted for the purposes of this case. Like its brother, Exhibit 18, another book of exactly the same type issued by Elders which contains one page of entries for contract header 9650, another header owned by the Defendant. All the entries in Exhibit 18 are in the hand of Mr Brain other than the additions and the total of the additions which additions and total were made again by his daughter, Ellie.
One can understand that if the Brains had a supply of old, free handouts from Elders that could be used to record things, they might be so used.
The fact that Exhibit 17 has no other entries other than for the work done for Mr Walsh is explained by the fact that since working for Mr Walsh, the Brains have not done any contracting work for any other person. I accept that the documents are genuine. However, for this exercise I only need accept that Exhibit 17 is genuine.
In Mann v Paterson Constructions Pty Ltd [2019] HCA 32, Nettle, Gordon and Edelman JJ said, at [203], that the defendant's claim must be limited to the reasonable value of the work performed and the costs incurred in anticipation of the joint venture which did not eventuate. Here, we have such a non‑completed or non‑accepted proposed joint venture.
When the defendant agreed to assist Mr Walsh in harvesting the Hawker's rice crop, it was assumed by both sides that they may enter into the joint venture at some future time. That did not occur, owing to the breakdown in the relationship between the plaintiff and the defendant, but, again, the cost must be a reasonable one.
I have been addressed at some length, in writing, in MFI 12, and orally, by both parties, on this issue. It appears to me that some form of compromise is called for.
One thing that I did form a view about initially in this case was that the plaintiff, Mr Walsh, was a very experienced farmer. I discussed his farming career at the commencement of my primary judgment. That is quite well attested to by Ms Caryn Plant, his sister, when giving evidence in cross‑examination. At page 86 of the transcript of 7 March 2022, Ms Plant said this:

"My father died in 2016 and he'd been growing rice for 50 years, there was one photo out of that that had been taken in 50 years and, .. I'm sorry, but I didn't want my brother to not have any photos. And also I thought that this was an adventure that, ... my brother was just starting and he was so excited about this venture. I thought, 'If you want to' ‑ I'm a family historian and I thought if we, ... took some photos now, that we'd look back at Hawker's and see how poorly laid‑out it was, and my brother would have made that look like the most amazing property 'cause that's what he does and that's what he's best at, and it would have been great to look at what a crap it .. is now to what it would have been ‑ to what he would have been able to make it and you would have looked back on that, which he does with Dalree and every other property that he's touched, you can see what his ... done, and that is the reason why I took the photos."

In other words, he was a farm buyer and farm improver, and enhancer of properties, and I am confident that his own primary holding, Archdale, at Deniliquin, would have been in a much better condition than the Hawker's Agglomeration.
It is clear from the Wiesners’ invoice that 70 rotor hours were recorded for the Gleaner that the plaintiff hired to harvest the Archdale wheat crop and half of the Hawker's wheat crop. There were 275.30 tonnes of wheat harvested from Archdale and 620.37 tonnes of rice that the plaintiff harvested from the Hawker's property. Of the total wheat harvested, 37.4% was harvested from Archdale and 69.26% was harvested, by the plaintiff, off the Hawker's farms. However, I would expect that it would have been much easier for the plaintiff, with his improved property, to harvest off Archdale than he would have harvested off Hawker's.
I do not accept, therefore, that only 69.26% of the time incurred by the Gleaner hired by Mr Walsh from Wiesners was spent on the Hawker's property. Some adjustment has to be made because Archdale would have been a much easier wheat crop to harvest. I am prepared to accept that 75% of the time of the Gleaner was used on the Hawker wheat crop.
75% of 70 hours is 52.5 hours. At the rate charged by Wiesners to the plaintiff, $260 per hour, the total amount would be $13,650. However, the Wiesners’ invoice makes it clear that there was a special rate applied to this hiring to the plaintiff. What was special about the rate, I do not know. Furthermore, I do not know anything about the state of the Gleaner which was hired by the plaintiff. It may have been an older machine, it may have been in poor condition.
The question is: at what rate should I allow the defendant to charge for the use of the John Deere 9770 header? I have come to the view that I should apply the rate of $600 per rotor hour. Applying that rate, which is common to the experts, was an appropriate rate to charge, if rotor hours were being used. 52.5 times 600 is $31,500.
I, therefore, allow for this item, which is item A1, the sum of $31,500.

Item A2

Item A2 is a claim for the supply of a tractor auger bin for 102.8 hours at the rate of $130 per hour. The experts agree that a reasonable rate of charge for supply of the auger bin and tractor is $130 per hour. In dealing with item A1 I have accepted that the 52.5 hours was a reasonable length of time. Therefore, I allow $130 for each of 52.5 hours and that gives me a total of $6,825.

Item A3

Item A3 is a claim for the hire of a John Deere 7520 125hp tractor with 100 tonne mother bin. The defendant's claim is that all of the wheat harvested on the Hawker's wheat crop passed through the mother bin, so the claim is for the 1240.74 tonnes of wheat in the mother bin at $3 per tonne.
The joint experts' report, which is exhibit Z, and is found in Volume 6 of the Court Book commencing at page 2447, discusses this issue at page 2459. The joint experts agreed that $3 per tonne was an appropriate charge rate for a John Deere 7520, 125hp with a 100 tonne mother bin, assuming the provision of a tractor and operator are included in the rate, but excluding fuel. The plaintiff's expert advised that without the provision of the operator the dry hire rate of the mother bin would be $1.50 per tonne.
There is a dispute as to how much of the actual wheat harvested on Hawker's went through the mother bin. In the affidavit of Mr Walsh sworn on 20 October 2021, Exhibit C, Mr Walsh said this at [227]:

"I dispute that the mother bin had 1,233 tonnes put through it. As explained above at para 205, the tractor and auger bin quite often out-loaded directly into the trucks. The mother bin did no more than 50 tonnes per day on any of the days it was used. I am willing to concede 50 tonnes per day for four days at the rate stated by Michael Ryan in his report of $1.50 per tonne being $300."

In Mr Brain's affidavit of 20 December 2021 which is exhibit 5, Mr Brain said this at [101]:

"As to para 227, the use of the mother bin allows 100 tonnes storage, which meant a further 100 tonnes could be harvested in one day. It was needed as Mr Walsh had only one truck operating. When our mother bin was on Hawker's, we could not use it on our own farms."

The delivery of the wheat happened during what might be thought to be "normal business hours". However, it is clear from the evidence that sometimes the harvesting went well into the late evening, and indeed into the nighttime. I accept that it would be reasonable to have the mother bin there, and it is likely that on five of the days of the harvest it would have been used. After all, the harvest was done in two stages. That is, between 21 and 24 December, and then again between 27 and 29 December. I accept that the mother bin would have been loaded with grain on 21, 22, 23, 27 and 28 December. Five days with 100 tonnes is 500 tonnes, and 500 tonnes at $3 an hour is $1,500. I allow that sum.

Items B4 and B5

The next items of the Defendant's cross‑claim have been numbered B4 and B5 by learned counsel for the Defendant. There is no dispute that the harvesting of the Hawker rice crop was shared between the Plaintiff and the Defendant. How the work done by the Defendant is to be reimbursed by the Plaintiff is hotly in issue.
The Defendant claims as item B4 the cost of running a John Deere 9770 harvesting machine for 203.5 rotor hours at a rate of $600 per rotor hour, a claim for $122,100. The Defendant's claim, B5, is for the cost of providing a John Deere 9650 harvesting machine for 147.6 rotor hours at a rate of $580 per rotor hour, being a total cost of $85,608. The total of those sums is $207,708. In written submissions the Plaintiff submitted that I would allow a total of between $61,479 and $86,856.48 for those two items. In his oral submissions, learned counsel for the Plaintiff, Mr Gunning, advanced another argument which would allow me to award between $81,972 and $91,808.64 for these two claims.
Of great assistance to me in this regard has been MFI 17, a two‑page spreadsheet provided to me by the Defendant. That list dates between 5 April 2017 and 26 June 2017. In red are the days on which rice was harvested from the Hawker farms. In blue are days on which rice was harvested from Dalree. In yellow are days when rice was harvested from Archdale, being the Plaintiff's property at Deniliquin. In green are listed days in which rice was delivered from Roy Brain's property to the grain silos. In addition, MFI 17 shows in yellow dates when, according to the Defendant, rain fell, and, relevantly, it also records the date of Mr Walsh's unfortunate heart attack, 19 May 2017, and the day of his unfortunate head injury on 1 June 2017, matters to which I referred in my primary Judgment given on 3 March 2023.
In respect of each day on which rice was harvested, there is the total of rice delivered to the grain silos on that day. It may well be that the document is somewhat inaccurate in that rice could have been harvested on the day prior to the delivery of the rice to the silos, but that, if such a vice exist, there would only be a minor discrepancy. The first vertical column concerning the Hawker rice crop is headed, "3 headers per day". But what it actually records is the total amount of rice delivered to the silos on that day. The second vertical column for the Hawker farms gives the average tonne per header, or harvesting machine, per day. It is common ground that the harvest took 37 days. They fell between 7 April 2017 and 26 June 2017. On 7 and 8 April not only was rice taken from the Hawker farms, but it was also taken from Dalree. Rice was also taken from Dalree and Hawkers on 18 April 2017.
On 10 May 2017, rice was taken from both Hawker's and from Archdale. That indicates that any rice taken from the Hawker farms was not physically harvested by Mr Walsh himself; albeit that his sister and nephew would have been working on the Hawker farms on that date. Rice was harvested from both the Hawker farms and Mr Roy Brain’s farm on 16 May 2017, which would indicate that on those days it is unlikely that Mr Ken Brain, and perhaps his wife, were present on the Hawker farms, albeit some of their children may have been. There is no other occasion on which there was harvesting on more than one of the relevant properties.
According to MFI 17, rain fell on 21 and 22 April 2017, and also on 24 and 25 April 2017. Rain fell again on 18 and 19 May, on 23 May and 30 May 2017, but there was no relevant rain after that date. As there are some discrepancies between what is contained on MFI 17 and what official Bureau of Meteorology records show, it may well be that MFI 17 records rain recorded by Mr and Mrs Brain at their property rather than that recorded officially elsewhere. Bureau of Meteorology rainfall for the Coleambally Irrigation Area is an annexure to the report of Mr Ken Bullen of Crawford Agriculture, the Plaintiff's expert. That report bears date 8 February 2022. It is Exhibit M. The relevant annexure to the report is Appendix P, which can be found on page 2342 of the Court Book in Volume 6.
The rain station is at Latitude 34.80⁰S, Longitude 145.89⁰E. It shows the following rainfall in March 2017:

“4 March, 0.4 mm;
13 March, 8.0 mm;
14 March, 0.5 mm;
21 March, 24.0 mm;
22 March, 19.0 mm;
23 March, 0.3 mm;
28 March, 0.2 mm".

In April 2017, the rainfall was:

"9/10 April", "5.2 mm;
21 April, 4.2 mm;
22 April, 10.6 mm;
25 April, 11.0 mm;
26 April, 3.4 mm;
27 April, 0.3 mm".

The rainfall recorded in May and June 2017 was:

"18/19 May, 23.6 mm;
21/22/23 May, 5.4 mm;
24 May, 4.6 mm;
27/28/29 May, 0.8 mm;
31 May, 1.2 mm;
6 June 0.3 mm".

In the body of his report, Mr Bullen said this about the conditions of the Hawker rice crop:

"7.16 Attached to this report in Appendix P is the Coleambally Irrigation rainfall records for 2016 and 2017. There was very minimal rainfall in the period from 24 March through until 21 April 2017. Additionally, there was no rainfall recorded between 28 April and 19 May 2017 at Coleambally, which coincided with the period in which the photographs were taken.
7.17 Hence, harvesting conditions during this period were generally suitable. Whilst ground conditions may have been soft, rainfall records and photographic evidence from the Plaintiff's sister indicate conditions for harvesting were suitable, with the exception of the fact the crop was lodged and hence would have been slower to harvest than if it was [sic] standing upright, in my opinion."
…
“6. In relation to the allegation at paragraph 53 of the Affidavit of Kenneth Brain sworn 23 October 2020 which states:
“The Hawkers ground was wet and boggy and the rice was lodged. Normally a harvester can strip 30 tonnes of rice per hour. However, due to the poor conditions on Hawkers, we were only able to harvest about 2 – 3 tonnes per hour. In this situation, we based harvest costs on header hours not on tonnages harvested. This is a usual charging practice when harvesting.”

Can you please advise, based on your education, training and experience, what type of conditions that would reduce a harvester capacity to 2 to 3 tonnes per hour?
7.18 Crawford Agriculture has undertaken the rice insurance claim assessments for the last six to seven years and hence we talk to the rice growers every year, in the Coleambally/Deniliquin regions in particular. The Affidavit of Kenneth Brain on 23 October 2020 stating that, “normally a harvester can strip 30 tonnes of rice per hour” in my opinion is on the upper level. At $25.00 per tonne and 30.00 tonnes per hour this is a rotor hour equivalent of $750.00. Generally, harvesters run in the $450.00 to $650.00 per rotor hour from my experience.
7.19 If the harvester is only doing 2.00 to 3.00 tonnes an hour as alleged by the Defendant and the header cost is $600.00 per rotor hour, then this is borderline not economical to harvest in my opinion. Assuming the price of $300.00 per tonne, the gross harvest result would be $600.00 to $900.00 per hour. The header cost of $600.00 per rotor hour, plus fuel, plus tractor and auger bin at $130.00 per hour, plus mother bin at $1.50 to $3.00 per tonne, plus cartage at $12.00 per tonne, means harvesting in these alleged conditions was not economical. I would have assumed it would have been more economical to leave the crop until conditions had improved if this allegation is correct.
7.20 However, it is possible that this very low rate of harvest had been occurring if headers were getting bogged and the crop was heavily lodged, which is quite possible in very wet conditions. However, to harvest only 2.00 to 3.00 tonnes per hour is not economical in my option and I believe the crop should have been left for the ground conditions to improve to ensure an economic harvest.
7. Whether the Defendant’s claim for harvesting costs set out in the enclosed Scott Schedule were the reasonable market rates in 2016/2017 including:
(a) Whether it was reasonable in 2016/2017 for a contractor to charge on rotor hours rather than tonnes harvested?
7.21 Generally harvesting contractor arrangements relate to $ per hectare or $ per tonne. However, if conditions are unfavourable or if yields are very high, then sometimes contractors will revert to a [sic] rotor hour rates for contracting. This would include such things as extremely wet boggy conditions where machinery cannot travel and harvest at normal speeds.
(b) Provide advice on how many tonnes per hour you would anticipate the following harvesters to be able to strip of wheat, barley and rice at:
7.22 The number of tonnes able to be harvested by a header is generally determined by crop yield and ground speed, which is determined by conditions, and hence the amount of grain being harvested. Generally, in good conditions the amount of grain harvested per hour increases and vise [sic] versa.
(i) John Deere 9770
7.23 From my experience, I recommend that a Class 7 John Deere 9970 should be able to harvest approximately 14.00 hectares per hour in wheat and barley crops. In rice crops I recommend a John Deere 9970 should be able to harvest between 20.00 to 30.00 tonnes of rice per hour.
(ii) John Deere 9650
7.24 From my experience, I recommend that a John Deere 9650 should be able to harvest wheat and barley at approximately 12.00 hectares per hour. In rice crops I recommend a John Deere 9650 should be able to harvest between 20.00 to 25.00 tonnes of rice per hour.”

On the same issue, the Defendant's expert, Mr Michael Ryan, in his report of 8 March 2021, which is Exhibit 12, said this:

“13. I note that in Paragraph 54 of Mr Brain’s Affidavit sworn 23 October, 2020 he states:
“The Hawkers ground was wet and boggy and the rice was lodged. Normally a harvester can strip 30 tonnes of rice per hour. However, due to the poor conditions on the Hawkers, we were only able to harvest about 2 -3 tonnes per hour. In this situation, we based harvest costs on header hours not on tonnages harvested. This is a usual charging practice when harvesting.”

14. I agree with Mr Brain’s comment that when conditions are wet it significantly impacts on harvesting productivity and it is usual for rice harvesting in slow conditions to be charged on a per rotor hour basis rather than by area or by tonne. In my opinion a reasonable rate to charge in late 2016 and early 2017 was $450 per rotor hour for a Class 6 header and $500 per rotor hour for Class 7 header plus fuel and GST (for both). I say this based on the suggested 2021 rates set out in Paragraph 11 (above) and my knowledge of contract harvester rates.
15. I note the total harvesting hours charged in the Scott Schedule are 102.8 hours for the 9770 wheat harvest, 203.5 hours for the 9770 rice harvest and 147.6 hours for the 9650 rice harvest. I am unable to comment on the number of hours other than they appear to be based on notebook records included as Pages 249 and 250 of Exhibit KCB1.
16. I recall the rice harvest of 2017 was a slow, drawn out harvest due to very wet conditions. Bureau of Meteorology rainfall reports for 2017 (included as Annexure 5) indicate Coleambally recorded 52.4mm for March, 34.7mm for April and 25.6mm for May which is a total of 122.7 compared to an (long-term) average for those three months of 91.6mm.”

Another expert is Mr Rod Gribble of Yenda, who describes himself as a farmer and professional harvest contractor who is president of the Australian Custom Harvesters Inc. He prepared a report bearing date 17 December 2021, addressed to the Defendant's solicitor. He was asked a number of questions by those retaining him. The 6th and 7th questions which he was asked and which he answered are these:

“Question 6: What is the typical difference between rotor hours and engine hours when harvesting average crops in good standing conditions?
In dry areas cereal harvesting, unloading “on-the-run”, with very few obstacles (e.g. trees, gullies), with long runs so as to reduce turn time, max would be 85% efficiency rate (i.e. 15% of the time is spent turning around at each end).
For irrigation cereal harvesting, efficiency would drop to 60-70%, because of the constant turning affect and short runs.
In relation to rice harvesting, if the rice was “flat on the deck” and on wet ground, efficiency would drop even further. This is because conditions are too wet for a tractor and chaser bin, consequently the header has to stop to unload.
Question 7: What is the typical difference between rotor hours and engine hours when harvesting crops in wet or lodged conditions?
Probably answered this above, but the difference would be high as the efficiency is very low. There are several variables that go into an answer in this situation. However, the fundamentals and irrefutable facts are, in wet or lodged conditions, harvesting costs a lot more on a per tonne basis because of the time factor.
The time to pick the crop “off the deck” and process damp and muddy crop through the machine takes significant additional horsepower. Then having to stop and unload, all adds to the time taken. There is also the greatly added wear factor to the machine in these conditions – there is always a big repair and maintenance bill to pay after harvesting in these “wet-flat” conditions.”

In the joint experts' report the following is stated; both Mr Bullen, Mr Ryan and Mr Gribble agree that a John Deere 9770 appropriate charge rate is at $600 per rotor hour. Both Mr Bullen and Mr Gribble state that the common charging practice for harvesting rice in reasonable standing condition is on a tonnage rate. The three experts agreed that the usual harvesting rate in the 2016/2017 season was $25 per tonne. The three experts agreed that harvesting conditions were likely to be reasonable in the early part of the 2016/2017 rice harvest period based on rainfall records. They all agreed that the latter part of the harvest, following rainfall events, was likely to be slower and more costly to harvest due to the crop being lodged; that is, having fallen to the ground. The experts agreed that the rotor hour rate for a John Deere 9650 was $580 per tonne. They agreed, in the respect of that claim, to the other matters which I have just discussed concerning the John Deere 9770 harvesting machine.
It ought be clear from what I have already quoted that the major dispute between the parties on this issue is the conditions in which the Hawker rice crop was harvested and also the condition of the Hawker rice crop itself, that is, how it was set out in the Hawker rice paddocks. In what I have already quoted from Mr Michael Ryan's report, it ought be clear as to what Mr Brain's evidence as to the condition of the Hawker rice crop was. There is some evidence from persons other than Mr Walsh and Mr Brain as to the condition of the rice crop. Ms Caryn Lorraine Plant is the sister of the plaintiff. By occupation she is a school teacher. Her affidavit sworn on 19 October 2021 is Exhibit H. In that affidavit she said this:

“4. My ex-husband and I bought a rice farm in 1981 and owned it until 1999. During that time, I would assist with the harvest every year and am very familiar with the process and conditions of a rice harvest.
5. In or around March 2017, my brother Alan asked if I would assist him with rice harvesting in April, May and June that year. At the time, I was not working as my father had passed away in September 2016 and I had moved into his house in Deniliquin which I had inherited. I had no work lined up at that time so I agreed to assist Alan which [sic] his rice harvest. I arrived on or around 15 April 2017 and stayed on until around 19 May 2017.
6. My son Andrew Plant also assisted Alan for the rice harvest.
7. When I first arrived, Alan, his employees and Ken Brain, an employee of his and some of his children were harvesting rice at Dalree.
8. I assisted Alan by driving his tractor and chaser bin.
9. The conditions at Dalree were exceptional as the paddocks were set up so well. I was able to drive the tractor faster in the paddocks than on the road, that’s how smooth the paddocks were.
10. Once we finished on Dalree, we moved to Hawkers and harvested the rice there.
11. The conditions throughout the harvest of the Hawkers Rice Crop were easy going. I only had to put Alan’s tractor in 4WD once. I know this as I texted my son-in-law asking how to put it in 4WD. I have checked my phone and I no longer have a copy of this text message however I do have the three photos I sent him from inside the tractor.
………
12. I have previously participated in rice harvests where I have had to be in 4WD the whole time throughout harvest so I know what wet conditions are like. The Hawkers Rice Crop was not wet or boggy conditions. I did not get bogged at anytime throughout the harvest.
13. I took the following photos throughout harvest which show the good conditions:
………
14. Towards mid to late May 2017, we received some rainfall and the conditions were starting to get slightly wet however the going was still good. I do not recall having any issues with wet or boggy ground. Images 12 to 16 referred to above show the conditions through mid to late May 2017.

15. Throughout the harvest, we started working around 8 am or 9 am in the morning depending on the dew levels and we went until dark. We worked at most 10 to 12 hour days. Sometimes, the dew levels would not lift until later in the morning and would come in early in the evening so we were only able to do 7 to 8 hour days.
16. Most mornings Alan, Andrew and I would be the first in the paddock and would often be out harvesting before the Brains or their employee[s] arrived.
17. Throughout the harvest, the Brains only had one employee and he got sacked early on in the harvest. After that, it was just Ken and Wendy Brain and their children.
18. Ken and Wendy Brain’s son Jared was assisting Alan as he was doing a two-week work placement for Alan. During this time, the son was working for Alan and not for his family.
19. During harvest, one of Ken and Wendy’s daughters had a baby whilst we were all out harvesting in the paddock one day. I remember hearing it announced over the two-way. Ken and Wendy took a couple of days off work to go and visit her.
20. Throughout the harvest, Ken Brain had issues with one of his harvesters. The following photos that I took during harvest show that harvester, which I understand was a John Deere 9650, parked up whilst the rest of the work team continued to harvest using Ken’s other harvester and my brother, Alan’s harvester:
………
21. Throughout the harvest, whilst I was supposed to be driving only Alan’s tractor and chaser bin, there were several occasions where I was driving Ken’s father, Roy Brain’s tractor and chaser bin.
……
23. No one of the Brains ever asked me to write down how many hours I was doing in Roy Brain’s tractor and chaser bin.
24. I believe at one time I was driving Roy Brain’s tractor whilst towing Alan’s chaser bin. My understanding is that there were no issues with sharing equipment. Everyone appeared to be getting along and working together really well.
…..
27… The Brains were also harvesting corn at the same time back on their own property. There were a few occasions where it was only Alan, Andrew and I harvesting. At the time, there was no issue with the Brains not being there as I understood that they had other jobs to do and the kids had activities on. Andrew and I had dedicated that time to helping Alan out and we had nothing else to do other than work for Alan so we were the ones who would do the extra hours when needed to get harvest finished.
28. Throughout the harvest, whilst I was mainly attending to Alan’s harvester to outload rice from its internal bin in the harvester into the chaser bin that I was towing, everyone in the paddock was working as a team so I would often be ferrying between all of the harvesters in the paddock. I was of the opinion that it was our job to get the rice off as quickly as possible so I would go wherever I was needed.
29. Image 8 referred to above was taken by me as I was collecting a load from Ken’s 9770 harvester.
……
30. Throughout the rice harvest at Hawkers, the chaser bins would always fill directly into the trucks first. The mother bin was only used as a secondary option on the occasions where the trucks weren’t back in time for the chaser bins to unload into them or after the silos had shut for the night and we were still harvesting. The following photos show me unloading directly into the trucks;
……
31. In another photo taken by me on 15 April 2017 (Image 20), you can see the tractor and chaser bin travelling to the truck to outload.
……”

By referring to MFI 17, one can conclude that Ms Plant was present during the harvest between 24 April 2017 and 18 May 2017. In other words, she missed the first 11 days of the harvest and the final five days of the harvest. I have not included the references to the photographs which she has taken. The photograph on page 613 of the Court Book shows some rice standing tall in a paddock and other rice, which could be described as lodged. The lodged rice appears to me to be on the left‑hand side of the photograph. It would appear there is on the right‑hand side of that photograph an image of the plaintiff's header and one can see in the distance the green header in operation, which was the Brain's larger header. In the far distance in‑between one can see an image, which was pointed out in evidence, was the John Deere 9650 header parked on a road.
The photograph on page 614 of the Court Book shows an auger bin discharging rice into a truck, the red mother bin parked on the left‑hand side of the truck and one of the John Deere headers parked on the left‑hand side of the mother bin. The photograph on page 165 appears to show areas that had been harvested. It was suggested by learned counsel for the defendant that it shows rice that had been "lodged", but there is no actual description by anyone that that is what it does show; however, it does show that there were trees abutting rice paddocks and banks within the paddocks on the Hawker's farm.
The photograph on page 616 of the Court Book shows one of the John Deere headers engaged in harvesting and appears to show some lodged rice, as well as some freestanding rice on the left‑hand side, but on the right‑hand side it would appear that there has been harvesting. I cannot conclude that it, as has been submitted, merely shows lodged rice. I must approach the photographs very cautiously, because there is really no expert evidence to tell me what they are. The photograph on page 617 shows the larger of the two defendants' headers, again engaged in harvesting and on the right‑hand side appears to show some "lodged rice", being rice that is at about 45 degrees to the ground, rather than at 90 degrees to the ground. Again, it has been submitted that the photograph on page 618 shows lodged rice, but of that I cannot be certain. It may merely be some areas that has been already harvested.
The photograph on page 619 shows the 965 harvester in the field, as does photograph 6 on page 620. Whether the rice shown on that photograph is lodged rice or rice after harvesting is unclear to me. Again, the photograph on page 621 may represent areas where harvesting had been completed, although the defendant through its counsel submits otherwise. The photograph on page 622 clearly shows standing rice on the left‑hand side and, again, in the background, and it might represent on the right‑hand side in the foreground, areas that had been already harvested. It does show one of the John Deere harvesters on the right‑hand side and what might be an auger bin in the background in the left‑hand side.
The photograph on page 623 shows two John Deere harvesters, as well as on the extreme right‑hand side, a red object which appears to be part of the mother bin. The photograph on page 624 shows the two John Deere harvesters in the field. Whether that shows lodged rice is unclear to me. Again, I would need evidence. The photograph on page 625 shows the two John Deere machines harvesting. I should indicate that the John Deere machines are both coloured green and yellow. The evidence of Ms Plant was that the plaintiff's header was coloured red, albeit that some photographs suggested it may have been multicoloured.
The photograph on page 626 shows some of the workers involved, including Ms Plant's son, in front of the actual harvesting blades of a harvester. The photograph on page 627 shows grain being transferred from an auger bin into a truck, as does the photograph on page 628. The photograph on page 629 shows a truck which clearly was there to be loaded with or had been loaded with rice that had been harvested. I had cause to refer to some evidence given by Ms Plant in an earlier ruling on the defendant's quantum meruit claim. Again, she shortly described the layout of the Hawker's farm as "crappy" and that appears to be common ground. As I have pointed out, what she said about the layout of the Hawker's farms indicated that she expected her brother, the plaintiff, to turn what were "crappy" farms into farms that might be described as ideal.
I have already mentioned Ms Plant's son, Mr Andrew John Plant, who swore an affidavit on 18 October 2021. That affidavit is Exhibit G. He is the son of Ms Caryn Plant and a nephew of the plaintiff. The substance of his affidavit is this:

“3. I grew up on a rice farm and have previously done work for Barlows of Jerilderie for a rice harvest. I am familiar with the process and conditions of a rice harvest.
4. From April to June 2017. I assisted my uncle with harvesting rice on the properties ‘Dalree’ and ‘Hawkers’.
5. The conditions harvesting at both Dalree and Hawkers were easy going. I recall that is was not overly boggy. I did not hear anyone in our work crew complain about the weather or the conditions to me or to anyone else throughout harvest and no one got bogged throughout harvest.
6. The conditions that year were consistent with the previous rice harvests I had experienced in relation to how regularly the trucks were being filled up to take a load into the silos. Based on my observations, the capacity of the harvesters in relation to how much they could strip per hour was not affected by poor conditions.
7. Later in the harvest, towards the end of May and early June 2017, we received some rainfall and there was a bit of lodged rice. The expression refers to where sections of the rice crop have fallen over and the grain head is located closer to the ground than if the crop was standing up straight. Other than that, it was the normal standard conditions for harvesting [r]ice.
8. I spent most of the harvest operating one of my uncle’s trucks carting rice grain from the paddock into the silos.
9. I also spent some time driving a harvester that belonged to the Brain family. It was a John Deere 9650. I operated that harvester when the Brains had no one else to drive it. I was happy to help out as we could get away with having only one truck taking loads of rice from the chaser bins into the silos when we were harvesting in paddocks close to the silos. This meant there was no issue with me not driving the truck and having only Alan’s employee driving one truck.
10. I recall that the Brain’s John Deere 9650 had had a lot of trouble with the Honey Bee front throughout most of the harvest. I operated that harvester for the Brains right at the end of the harvest, once the Honey Bee front had been repaired and the harvester was back in action. Prior to it being fixed, it was out of action a lot. I believe that this harvester would not have done anywhere near as much stripping as the other harvesters.
11. At no point during the harvester when I was operating the Brain’s harvester, did Ken or Wendy Brain ask me to record the hours I spent in the harvester or the rotor hours of that harvester.
12. I also spent a short amount of time driving my uncle’s harvester and would occasionally jump on my uncle’s tractor which had the chaser bin attached in place of my mum, Caryn so that she could knock off early and get dinner ready.
13. There was one day towards the end of harvest where I was the only worker there that day and I had to drive the harvester, the tractor and chaser bin and then, once the truck had a full load of rice in it, I had to drive the truck into the silo.
14. Throughout harvest, I would start work around 7am or so and would grease the machines. We would start harvesting around8am or 9am depending on the dew levels and we would work through until dark.
15. Throughout harvest I would usually have the truck filled up directly from the chaser bin. The Brains’ mother bin was there but I rarely used it to fill up the truck. This was because we were harvesting so close to the silos that it did not take very long to cart a load of rice from the paddock to the silos and be back in the paddock ready to collect another load from the chaser bin.
16. The mother bin would only be used in situations where the trucks could not keep up with the harvesters and the chaser bins so that a load needed to be dumped into the mother bin for the trucks to collect once they got back in the paddock. There were also a few occasions where the mother bin would be filled up overnight after the silos had shut for the day however, the trucks would be filled up first, and then the chaser bins would be filled up and the mother bin would only be used if necessary.
17. We did not have the mother bin in the paddocks that were located really close to the silos as there was no point moving the mother bin as the trucks were keeping up with the harvesters.”

Mr Andrew Plant gave oral evidence by AVL from Echuca to the Court sitting in Wagga Wagga on 8 March 2022. By occupation he is not a farmer, but a welder fabricator. In cross‑examination Mr Plant was asked what he meant by "poor conditions", a term used by him in paragraph 6 of the affidavit which I have just quoted. He referred to that being "bogginess". He said that such a condition could be caused either by rain or by water lying on the ground. He agreed that if rice became lodged, it became harder for harvesters to extract the rice and also it made the process longer.
He agreed that if he was driving his uncle's truck for most of the harvest, he was away from the actual paddocks where the rice was grown for a fair amount of his time working on the Hawker farms. He was required to drive either for 2 kilometres to the silos, I assume, at Coleambally, but sometimes he had to drive 20 kilometres to other silos. Sometimes there would be a queue and he would have to wait to have the rice delivered into the silo. I assume from reading his evidence again that one of the reasons for going 20 kilometres rather than 2, was to avoid having to queue up if that were possible.
He also gave this evidence about the John Deere 9650 harvester:

"Q. You say at paragraph 14, you were working from 7am harvesting, work all day, commencing from 8am or 9am, working through till dark, that's correct?
A. Correct.
Q. In that time, you were just giving evidence that you are constantly driving trucks from the paddocks to the silos and back all day?
A. Most of the day, yes.
Q. You wouldn't have been focusing on how much time the John Deere 9650 harvester was working or not working, do you agree?
A. I agree.
Q. Is it your evidence that you are aware that the harvester did not operate on Sundays?
A. I believe so, yes.
Q. Do you know how many days it did not operate for?
A. No."

In further cross‑examination he agreed that it was not necessary for him to record rotor hours each and every day as the rotor hours are only recorded when the machine is actually harvesting, and one could only make a record between the commencement of harvesting and the end of harvesting. In cross‑examination Mr Plant also said that he started working in April very close to the time when his mother started. We know his mother started on 24 April. Prior to that there was a gap in harvesting on the Hawker farms of five days. During three of those five days rice was harvested on Dalree. Mr Plant did say that he harvested on Dalree. It appears to me likely therefore that he probably only started working on the Hawker farms probably at the same time as his mother did on 24 April 2017.
He agreed that his mother left the site on 18 May, but could not recall his uncle, the plaintiff, having a heart attack on 19 May, and he said that he may have left before that occurred. I would think that a young man working for his uncle, who was present when his uncle had a heart attack, would certainly remember such an event. They are unusual. I therefore conclude that it is likely that he probably left the Hawker farm on 18 May when his mother did as well. Again, the ability of Mr Plant to make any useful observations of harvesting conditions must have been limited by the shortness of his duration at the scene, in particular each day, and because he was only there during the cropping between 24 April and 18 May 2017.
The parties cannot agree as to how many cropping machines were used on the Hawker farm. The defendant says that there were three. They were its two machines, the John Deere 9770 and the John Deere 9650, as well as Mr Walsh's machine. The plaintiff says that I should only consider there being two machines, the John Deere 9770 and Mr Walsh's machine. It is common ground that I should assign to Mr Walsh's machine the same capacity as the John Deere 9770. However, it is clear from the evidence which I have quoted from Andrew Plant that the John Deere 9650 was actually on the scene and was used to harvest, and that is also clear from the photographs taken by Ms Caryn Plant.
I accept that the John Deere 9650 was not used as frequently as the John Deere 9770 because it experienced problems from time to time. However, it is also evident from the expert evidence, which I have quoted, that as far as cropping rice in difficult circumstances is concerned, the John Deere 9650 essentially had the same capacity as the John Deere 9770 machine. The question then becomes in what period of time was the John Deere 9650 used, if one considers that the John Deere 9770 as well as the plaintiff's machine were used throughout the cropping of the Hawker's rice crop.
That takes me to highly contested records produced by the defendant. Exhibits 17 and 18 are the originals of records, copies of which were originally annexed to the affidavit of Kenneth Charles Brain sworn on 23 October 2020, which is Exhibit 1. Those copy records can be found on pages 1223 and 1224 of Volume 3 of the Court Book. They are exact photographs of the relevant parts of the original documents, Exhibits 17 and 18. Exhibit 17 is what the defendant calls the logbook for the John Deere 9770 machine and Exhibit 18 is what the defendant calls the log book for the John Deere 9650 machine. I already had cause to refer to them in an earlier ruling on another part of the defendant's quantum meruit claim. It has been, essentially, submitted by the defendant that these records are not genuine and do not record what they are alleged to record. It ought be clear from my primary judgment that I formed a favourable impression of Mr and Mrs Brain when they gave evidence and I accept that they have done their best to tell me the truth.
To suggest, as has been submitted on behalf of the plaintiff that these are "bodgey" records, records that have been constructed to mislead the Court is an allegation of a serious crime, as well as a serious contempt of this Court. I do not believe that either Mr Brain or Mrs Brain would attempt any such thing. I accept them as genuine. I shall have a little bit more to say about the submission later. However, the relevant point is this, that as far as the 9770 machine is concerned, it recorded 203.5 rotor hours harvesting the Hawker's rice crop. The 9650 machine recorded 147.6 rotor hours during the harvesting of the Hawker's rice crop. The difference is a difference of more than 25%. That indicates that the 9650 machine did only 75% of the work done by the other machine, perhaps a little bit less. If one assigns to the machine driven by or on behalf of the plaintiff the same rotor hours as the 9770 machine, one can ascertain by using simple mathematics that 37% of the crop was harvested by the plaintiff and 63% was harvested by the defendant.
It is common ground that the total Hawker rice crop was 4,918.32 tonnes. That can be rounded off at 4,918 tonnes. The average number of tonnes harvested per day was 132.91. That, of course, is by dividing 4,918 by 37. Clearly, that is an average. It is not the actual amount, but it is an average. One can ascertain how much was actually harvested by looking at the first vertical column on MFI 17. Learned counsel for the defendant has submitted that I should approach the matter as if there had been an average of ten hours operated per day. That can be ascertained from the evidence of Mr Plant which I have quoted and it is also in other places; however, averaging of this nature is fraught with danger, because sometimes work is interrupted by a breakdown of a machine, some other malfunction, by the need of human beings to refresh themselves by taking breaks, by taking meals and by answering the calls of nature. It is clear that there were both ladies and men out in the field and a call of nature may require a vehicle to be stopped whilst the driver attended to what he or she needed to attend to.

If one divides the average number of tonnes harvested per day by three, one gets to an average of 44.3 tonnes. If one then divides that by ten hours per day, one reaches an average of 4.4 tonnes per hour for each of three harvesters. In MFI 21, another part of the defendant's submissions, the learned counsel for the defendant made a précis of the tonnes harvested in each of three periods of the harvest. I include that in these reasons at this point:

1st period of harvest 7 - 18 April 2017

Number of days work 11 days (all expect [sic] 14th)

Total harvested 2,299.82 tons

Tons per day 209.07 tons (2,299.82 / 11)

Each header tons per day 69.69 tons (209.07 / 3) 104.5 tons (209.07/2)

Tons per header per hour 8.7 t/hr (8 hrs day) 13.0 t/hr (8 hrs day)

6.7 t/hr (10 hr day) 10.4 t/hr (10 hr day)

5.8 t/hr (12 hr day) 8.7 t/hr (12 hr day)

RAINFALL
21 April 2017, 22 April 2017, 24 April 20[1]7, 25 April 2017.

2nd period of harvest 24 April 2017 t0 [sic] 10 May 2017

Number of days work 16 days (all expect [sic] 27 April)

Total harvested 2,067.4 tons

Tons per day 129.21 tons (2,067 /16)

Each header tons per day 43.07 tons (129.21 / 3) 64.6 tons (129.21/2)

Tons per header per hour 5.3 t/hr (8 hrs day) 8.0 t/hr (8 hrs day)

4.3 t/hr (10 hr day) 6.4 t/hr (10 hr day)

3.5 t/hr (12 hr day) 5.3 t/hr (12 hr day)

ROY BRAIN CROP HARVESTED
10 May 2017 to 13 May 2017

3rd period of harvest 14 May 2017 to 18 May 2017

Number of days work 5

Total harvested 369.7 tons

Tons per day 73.94 ton (369.7/5)

Each header tons per day 24.6 tons (73.94/ 3) 36.97 tons (73.94/2)

Tons per header per hour 3.0 t/hr (8 hrs day) 4.6 t/hr (8 hrs day)

2.4 t/hr (10 hr day) 3.6 t/hr (10 hr day)

2.0 t/hr (12 hr day) 3.0 t/hr (12 hr day)

One can see that learned counsel divided the average number of tonnes per day by both three and two to account for the difference between the two submissions, that is, whether three headers were involved or two headers were involved. The point in this analysis is this. If conditions were good or, one might say, ideal, if all the rice could be harvested upright, if all the rice to be harvested was wholly upright and in well laid out paddocks with no bogginess involved, no moisture in the soil, one would expect each harvester to harvest 25 tonnes per hour. If three harvesters were provided and they work for 10 hours per day, one would expect the whole crop to be harvested in six and a‑half days. The simple fact is it was not. It was harvested in 37 days. This indicates to me, abundantly, the conditions were far from ideal, and even if work was only done for 8 hours per day, one would expect that the crop could have been harvested in less than eight and a‑half days. Yet again it was 37 days.
It has been submitted on behalf of the defendant that the returns for each day, when looked at individually, show that on some days there was a good crop harvested, but on other days there was a lesser crop harvested. I am talking here only of the Hawker farms. For example, on 15 April 292.04 tonnes were harvested. On 16 April 290.94 tonnes were harvested. On 17 April only 48.34 tonnes were harvested, and on 18 April 50.78 tonnes of grain were harvested. However, on 18 April 44.52 tonnes of rice was taken from Dalree. The 18 April may represent taking off just roughly 50 tonnes from Hawkers, and 44 tonnes from Dalree, and in the meantime it was necessary to move the harvesters from one farm to the other. However, that does not explain 17 April. On 24 April 197.42 tonnes was taken off Hawkers and there was rain on that day, but the rain had been in the afternoon and overnight. On 25 April only 75.88 tonnes were taken, but, again, according to MFI 17, there was rain on that day. That could have been in the morning or, in the late afternoon or evening. On 26 April 23.84 tonnes was taken off Dalree, but again that may have been because it was rain affected. Again, on 28 April 42.38 tonnes was taken off Hawkers, but there might still have been rain affectation. On 29 April however 215.10 tonnes was taken off the Hawker Agglomeration.
The figures are erratic but there is no suggestion that between 24 April and 18 May any of the harvesting equipment, meaning the three harvesting machines, auger bins, and tractors needed to tow the auger bins, or the trucks needed to cart the harvested rice to the silos, were not available, that they had been used elsewhere. It appears to me, with the utmost respect to the plaintiff, that the submissions on behalf of the defendant are sound and that the conditions were far from ideal. Again, that leads me to a preliminary view that I should accept the material contained in Exhibits 17 and 18, the logbooks showing rotor hours for each of the defendants two headers.
However, I must consider what has been submitted on behalf of the plaintiff, which relies largely on material produced by a third party, Mr Bruce Simpson of Peppin Planners. It is convenient at this stage to record the evidence of Mr Brain contained in his affidavit of 22 February 2021, which is Exhibit 3, and commences at page 1258 of the Court Book Volume 4. The relevant part of Mr Brain's affidavit is under the heading, "Discussions regarding the proceeds of the Dalree rice crop", which commences on page 1279 of the Court Book.
Mr Walsh said this:

“106. In June and July 2017, I had the disagreement with Mr Walsh regarding the proceeds of the Dalree rice crop which I refer to at paragraphs 71 to 75 of my October Affidavit.
107. On 11 August 2017, I received an email from Mr Simpson. A copy of that email is at page 83 of exhibit KCB-2.
108. In the email dated 11 August 2017, Mr Simpson wrote that he wanted to arrange a meeting to “sort out current arrangements particularly regard to the 2017 rice crop.” I understood that statement to be referring to us reimbursing Mr Walsh for the costs of planting the Dalree rice crop. On that basis we agreed to attend the meeting with Mr Walsh.
109. On 21 August 2017, my wife and I attended a meeting with Mr Simpson at Peppin Planners. Mr Walsh did not attend the meeting. When we arrived at the meeting, I had a conversation with Mr Simpson to the following effect:
I said:      “Where’s Walsh?”
He said:   “He’s not here.”
I said:      “Whose paying for this. I’m not paying for the meeting.”
He said:   “I guess Walsh is going to pay. Walsh wants the sale proceeds from the Dalree rice crop.”
I said:      “No, we had an agreement we would retain the rice crop and he would be reimbursed his costs of planting the crop.”
He said:   “One option could be that you give Walsh the rice crop proceeds and you don’t have to reimburse him his costs.”
I said:      “No, we do not intend to give Mr Walsh the proceeds from the Dalree rice crop because he agreed we would retain the proceeds on the basis we reimburse him his costs of planting the crop. We will not consider that at all.”
He said:   “Okay, but we still need to do a wash up of the costs you both incurred for the work you did for each other.”

110. During the meeting on 21 August 2017, we spent 3-4 hours with Mr Simpson trying to estimate, in accordance with NSW Department of Primary Industries (DPI) guidelines, what Mr Walsh’s input costs were into the Dalree rice crop. We produced invoices detailing the costs we incurred in harvesting the wheat and rice crops for Mr Walsh at the Hawkers Properties. We also produced an agistment invoice for Mr Walsh’s sheep that were still on “Dalree”. Mr Simpson calculated figures on the whiteboard. At the meeting, Mr Simpson estimated that Mr Walsh owed us between $30,000 to $50,000. More was owing in respect of the agistment. Mr Simpson took a photograph of the whiteboard on his mobile phone and said words to the following affect:
“You don’t need to take notes because I’ve taken a photograph of the whiteboard with the figures on it and will provide you with the details.”

111. During the meeting on 21 August 2017, I had a conversation with Mr Simpson to the following effect:
I said: “Can you get Alan to produce documentation of his costs associated with planting the rice crop on “Dalree” to confirm his costs?”
He said: “Yes.”

112. After the meeting with Mr Simpson on 21 August 2017, my wife and I had a conversation to the following effect:
I said: “I’m quite confident that Alan has been fairly compensated and that the issue is resolved.”
She said: “I agree.”

113. On 11 September 2017 at 2:40pm, we received an email from Mr Brown. A copy of that email is at page 84 of exhibit KCB-2. In the email Mr Brown confirmed that the parties were not pursuing any joint farming agreement.”

Mr Rob Brown is another person from Peppin Planners. The substance of the email, which was also sent to Mr Walsh, is this:

"This is to follow up calls with Ken and Allen and discussions with Bruce.
My understanding is that the following is where we are at the moment:
(1) You all agree that with dramatic growth in scale it makes sense for each to no longer pursue the [joint venture] but to consolidate for a year or two and then reconsider the opportunities of working together. That said:
(a) That last six months or so has meant that the challenges of working together are clearer.
(b) The potential benefits are still there: ie, potentially synergies of larger scale, for Brains, an arrangement that is big enough to assist all children being involved at sufficient scale operating own and [Allen Walsh] farms, and eventually buy the farms, and for AW to slow down and retirement transition that allows him to maintain his investment in [agriculture] in the meantime:

(2) You both agree that the path to...sort out the wash out, and in particular the rice crop on Dalree is as follows:
(a) Bruce will email his understanding of each party's position for their assessment. The aim here is to most clarity.
(b) Once this is confirmed, we will organise a meeting to see if a [shared] view can be reached.

In the meantime, it's great if you can talk with each other about the normal operational matters that come up."

Later on the same day, Mr and Mrs Walsh received an email from Mr Bruce Simpson of Peppin Planners sent at 5.13pm. It does not appear to have been copied to the plaintiff. The substance of that document is this:

“Sorry I didn’t return your call Ken but I lost my phone and had to get a new one.
Please find attached the information you requested following our meeting. I think it is important to note the data in the summary is indicative only as per how we put together some of the figures during the meeting.
The following is my summary of what I thought were your key objectives & issues from the meeting.
> Brains took on Dalree in good faith that the rice was theirs to sell as Alan did with Hawkers(but didn’t know what arrangements Alan had put in place with the settlement with Hawkers) and
> Hence you prefer the Vendor to get any costs returned and purchaser retains crop (Option 2)
> It was acknowledged that transactions of properties was due to the intent and that these transactions wouldn’t have happened if the intent was not there.
> Property was meant to settle in Nov but for whatever reasons didn’t settle until March 2017
> Alan funded the majority of costs (you also contributed) to grow the Dalree rice crop
> Ken & Wendy noted Alan had retained all rice crop from Hawkers but were not sure what arrangements Alan had in regard to the settlement Hawkers. (I understand from Alan that he had to pay a higher capital price to buy the rice crop).
> Ken & Wendy did work on Hawkers for what harvest and Alan did work on Dalree
> Want to understand value of the grazing that has taken place on Dalree and have reflected by way of agistment
> Unsure of what was going on with activities that were taking place on Dalree (eg fertilizing pastures in May etc)
> You were surprised Alan wasn’t attending
> You support the two key principles of
- Maintaining a strong relationship with Alan
- Keep door open to establish an operating business with Alan to operate all the land & water (Unit Trust has been set up to allow this to happen)
> But you need more time because
- The business has experienced significant growth (150%) with the purchase of Dalree and taking control of you (Ken’s) father two properties (which weren’t part of original intent)
- Your accountant & solicitor are indicating some concerns which is creating doubt in your minds.

> All expenses are put on the table and recouped accordingly
> Look at:
- Option 1 (Alan retains rice crop income from Dalree and expenses are adjusted accordingly) or
- Option 2 (You retain Dalree rice income and adjust expenses accordingly) and

> Your position was for Option 2 based on “the intent” of setting up the unit Trust[.]”

The spreadsheet attached to that contains two options. The first option involved the plaintiff receiving the proceeds of the Dalree rice crop. That showed the value of that crop as being $503,000. Offset against the plaintiff’s receiving the proceeds of the Dalree rice crop were deductions of costs which Mr Walsh owed to the defendant for work done on the Dalree rice crop, and "other money owed to Brains". The first of those was for the harvesting of the Hawker's rice crop. It refers firstly to 533 tonnes of rice, rather than the actual 4,918.32 tonnes of rice. Nothing turns on that. That has then been divided by three to account for three headers. That has then been multiplied by $25 for each tonne and then has been multiplied by two to account for the two headers provided by the defendant. The narrative beside that is this:

"5,033t stripped from Hawker's rice. Brain supplied two headers, Alan supplied one (assuming they each did a equal one‑third of work) based value on rice contract rate of $25/t before supply of snigging bins and mother bin and also assume a flat rate as three headers were all stripping in difficult conditions."

Firstly, there is an acknowledgement by Mr Alan Walsh that harvesters were stripping in difficult conditions. The flat rate was the flat rate for good conditions. There was also acknowledgement there of two headers being supplied by the defendant. That made for a payment, if I understand the spreadsheet correctly, of $83,884 from the plaintiff to the defendant. The second option was for the Brains retaining the whole of the proceeds of the Dalree rice crop. Again, the same formula is provided for reimbursing the plaintiff for the cost of harvesting the Hawker rice crop.
I return now to Mr Brain's affidavit:

“115. In the email dated 11 September 2017 at 5:13pm, Mr Simpson stated that he has lost his phone. The email dated 11 September 2017 was the first contact we had received from Mr Simpson since our meeting on 21 August 2017.
116. In relation to the contents of Mr Simpson’s email, I do not agree that it summarises the key issues we discussed in the meeting with Mr Simpson on 21 August 2017.
117. In his email, Mr Simpson wrote that:
“Brains took on Dalree in good faith that the rice was theirs to sell as Alan did with Hawkers…”

118. In relation to the statement that we took on Dalree in good faith, we took on Dalree on the basis that we had entered the Dalree rice crop agreement with Mr Walsh.
119. Further in the email dated 11 September 2017, Mr Simpson stated:
“You support the two key principles of:
- Maintaining a strong relationship with Alan
- Keep door open to establish an operating business with Alan to operate all the land & water (Unit Trust has been set up to allow this to happen)”

120. I deny giving those instructions to Mr Simpson in the meeting on 21 August 2017. I had no intention of maintaining a strong relationship with Mr Walsh or of establishing an operating business with Mr Walsh.
121. In the spreadsheet titled ‘Walsh Brain summary’, the numbers discussed in the meeting with Mr Simpson on 21 August 2017 had been significantly altered in Mr Walsh’s favour.
122. On 6 October 2017, my wife and I had a telephone conversation with Mr Brown to the following effect:
Mr Brown said:   “I need to sort out the Dalree rice crop with you. Walsh’s position is that the rice crop is his and you need to compromise to get it all sorted or you will face further action.”
I said:         “Before we brought Dalree, Walsh agreed that the Dalree rice crop would be ours. We agreed to pay Walsh for his inputs but he needs to produce legitimate invoices and he needs to pay us for the work that we did for him. He still has all his machinery and sheep on Dalree, when will he take them?”
Mr Brown said:   “I don’t know why he hasn’t taken his sheep or machinery. I wasn’t aware that they were still there. But Walsh said the crop was not given in with Dalree.”
I said:         “We had an agreement that we would keep the rice and reimburse Walsh for his inputs. We paid for the water and we delivered the crop in our name with delivery cards with our name on them. Walsh signed the transfer forms.”
Mr Brown said:   “This is a difficult position. We are trying to represent you both, but I think you need to come to a meeting to thrash it all out so you can reach a compromise.”
My wife said:      “And what guarantee do we have that Walsh will turn up to a meeting? We tried to meet with his but he never showed. We are not attending any meetings to be railroaded by you or Walsh. Either we have an independent mediator or any further contact can be through our solicitor.””

On 26 October 2017, Mr Simpson sent another email to Mr and Mrs Brain. This was also addressed to the plaintiff. The substance of the email is this:

"Please find note from meeting with Ken and Wendy last week, along with details of option 1 & 2 for your view.
It is clear from my conversations with you all that the Brains are of the view they should retain rice crop, and Alan is of the opposite view. The attached summary of options 1 & 2 (still subject to final agreement about the costs et cetera) reflect the net position based on the assessment to date of each option. Both options have not included the consideration of agistment, that is still to be finalised.
Option 1 indicates an amount $140K (before agistment and final agreement) plus remaining pool payments of the rice. Option 2 indicates (before agistment and final agreement) an amount of $178K owing to Alan. The difference (based on the above comments) between option 1 & 2 is $38K in cash terms before consideration of pool payments.
I believe there is the ability to come to a sensible agreement to ensure the issue is resolved.
Rob is going to provide further information tomorrow."

The notes referred to in the first line of what I have just quoted are these:

“Conversation with Ken & Wendy Brain phone meeting 20-10-17 9 am
The Brains view of the intent was:
> Until the bank was satisfied, having been provided the details of the unit trust the Brains were operating stand alone
> The understanding they were operating on in regard to the rice on Dalree was (from discussions with Alan) that the work they did was to offset the costs Alan was incurring growing the rice on Dalree
>They were therefore of the view the rice on Dalree was there’s [sic] (and they had allowed for it in their budget presented to the bank)
> Until such time as the bank was comfortable with the unit Trust financial performance, the Brains were working on the basis the purchase of Dalree was a standalone operation and their other activities (maize etc) was totally retained by them.
> The Brain’s position is to retain the Dalree rice crop revenue having allowed for costs Alan incurred.
> I explained Alan’s view was the opposite and the only way forward was either on basis of compromise or further action, not being beneficial to either party.
> I went on to explain the two options (one being the Brain’s retain the rice revenue the other being Alan retains the rice revenue.
> They asked for the details of both options”

There are then again, another two pages in the Court Book. Option 2 appears on page 1387 and option 1 appears on page 1386. They probably were reversed unintentionally in the photocopying process. Option 2 was for the Brains to retain 100% of the revenue from the Dalree rice crop. Again, as far as the costs incurred by the defendant for the harvest of the Hawkers rice crop, the same formula is used that was included in the earlier option 2. That then has this comment next to it:

The question is should I adopt the methodology advanced by the Defendant or the methodology to be found in Mr Bullen's opinion? However, learned counsel for the Plaintiff disputes the methodology advocated by Mr Bullen because he maintains as he maintained yesterday that the logbooks were bogus and that I ought not rely upon them, repeating the stance that he adopted yesterday and to which I rejected. In circumstances, I am constrained, in my view, to adopt the methodology proposed by the Defendant which makes sense.
I have now heard further submissions on item B6. Mr Gunning for the Plaintiff rose to his feet to submit that I misunderstood his argument, and he was in effect relying upon the methodology suggested by Mr Bullen even though he disputes the accuracy and the reliability of the rotor hours claimed, referred to in Exhibits 17 and 18, and repeated submissions he made about those exhibits yesterday in shorter form today. I have to accept what he said, that I may have misunderstood his position and that, accordingly, he adopts the alternative that I raised based on Mr Bullen's methodology of applying half the rotor hours, so that he adopts the figure of $36,049.
The issue then becomes what is the factual scenario, because there is a dispute between the experts as to how long the tractors and auger bins were in use. I have, I believe, quoted the relevant parts of the experts' opinion in that regard. Compromise is, therefore, called for. If I compromise the position between $65,143 and $36,049 I reach a figure of $50,596. I allow for item B6, the sum of $50,596.

Item B7

The next claim made by the Defendant is numbered B7. It relates to the provision by the Defendant of a John Deere 7520 125 hp tractor with a 100-tonne mother bin for the Hawker's rice harvest. The claim is at a rate of $3 per tonne for 4,610 tonnes of rice. Previously, I have pointed out that there were 498.3 tonnes of rice taken from the Hawkers' farms. They however were wet tonnes. The 4,610 figure represents the number of dry tonnes of rice taken off the Hawker's rice fields. The claim is for that number of tonnes at the rate of $3 per tonne. There is a dispute about how many tonnes should be seen as going through the mother bin, and also a dispute as to the rate at which the charge should be made.
The evidence of the Plaintiff, Mr Walsh, on this issue can be found in his affidavit of 20 October 2021 which is Exhibit C. That affidavit commences on page 630 of the Court Book which is in Volume 2. Commencing on page 683, Mr Walsh said this:

“247.   In relation to the hire of the mother bin, I dispute that 4,610 tonnes were put through the mother bin. As explained above at paragraphs 205 and 226, the harvesters quite often out-loaded directly into the trucks. During harvest, my sister took a few photos. Image 2 referred to above at paragraph 230 shows the tractor and auger bin outloading rice directly into the trucks.
248.   In another photo taken by Caryn on 15 April 2017 (Image 8), you can see the tractor and auger bin travelling to the truck to outload.
Exhibited behind Tab 67 of ADW-3 is a true copy of this photo
249.   In addition, during the Hawkers Rice crop, we were stripping according to varieties which meant that we were often moving around from one farm to another. We were often only at one farm for a day or so before moving on to another. Some days, we got to a farm and started stripping only to find that the moisture was too high and we needed to move on to another farm. When this occurred, the mother bin was not taken with us as it was not an easy job to move it. The trucks were much more versatile and we let the drivers know which farm we had moved to and they followed us there. The tractor and auger bin unloaded directly into the trucks. We would not transfer the mother bin to a new farm until we were confident there would be sufficient grain of the relevant variety there to make relocating it worthwhile.
250.   I do not believe that the mother bin was used when we harvested on the following dates:
7 April 2017 at Farm 219
15 April 2017 at Farm 204
16 April 2017 ay Farm 219
26 April 2017 at Farm 204
20 June 2017 to 23 June 2017 at Farm 209
26 June 2017 at Farm 209.
As set out above, my sister Caryn was assisting with harvest and taking photos throughout harvest. Images 2 and 8 referred to at paragraphs 230 and 248 above show the auger bins filling up the trucks directly and the mother bin not being used.
251. On 7 and 8 April 2017, we were still harvesting at Dalree and I believe that the mother bin was being used over there. Ken has claimed the cost of it being used both at Dalree and at Hawkers. It is impossible for it to have been at both harvests at the same time.
252. The mother bin did no more than 50 tonnes per day on any of the days it was used. I am willing to concede 50 tonnes per day for 30 days at the rate stated by Michael Ryan in his report of $1.50 per tonne being $2,250.00.”

Antecedent to re‑reading that evidence I formed the view that of the 37 days of the harvest of the Hawker's rice crop, it is unlikely that the mother bin was used on nine of the days. I note that in [250] of what I have just cited, Mr Walsh said there were seven days when he did not believe it was used. It clearly could not have been used on 7 and 8 April 2017 because the mother bin was still at Dalree on those days. On my calculations, it could not have been used on either 18 or 26 April, on 10 or 18 May, or on 23 or 26 June. Those were the last days of various periods when the rice harvest had stopped, and no harvesting was carried out on the day following so it is unlikely that rice would have been left stored in the mother bin unattended.
Accordingly, although the Defendant claims that the mother bin was used over the whole 37 days I would only allow 29 days. One will note in [252] that Mr Walsh estimated that no more than 50 tonnes were placed in the mother bin on any of the days it was in use. On this issue, Mr Brain in his affidavit sworn on 20 December 2021 (which is Exhibit 5) said this, commencing on page 1633 of the Court Book, which is in Volume 4:

“108. As to paragraph 247 to 248, in about April 2017 Mr Walsh said to me words to the following effect:
“Your mother bin is to stay here the whole time we’re harvesting Hawkers.”

Our mother bin remained at Hawkers from about April 2017 to June 2017 exclusively for Mr Walsh’s use. When our mother bin was on Hawkers, we could not use it on our farms.
109. As to paragraph 249, our mother bin has the capacity to allow for an extra 70-80 tonne of rice per day to be harvested and allowed the trucks to deliver and keep delivering all day.
110. As to paragraphs 250 to 255, I maintain that the amounts we have calculated are accurate and reflect the work we did. I rely on the rates calculated by the independent experts we have had engaged to calculate the value of our work.”

One will note Mr Brain's estimate in [109] that the use of the mother bin allowed an extra 70 to 80 tonnes of rice per day to be harvested and after, the silos were closed and allowed the trucks to deliver that rice on the following day. The average of 72 to 80 is, of course, 75. If one allows 75 tonnes over 29 days, one reaches the sum of 2,175 tonnes. If one allows 50 tonnes per day for 29 days, one reaches a figure of 1,450 tonnes. Clearly a compromise is called for. If one splits the difference one comes to 1,812.5 tonnes. I am prepared to accept that amount of rice went through the mother bin. It is clear to me from reading the expert evidence that only the rice that was actually put in the mother bin is taken into account in the calculations.
In his report of 8 February 2022, which is Exhibit M, Mr Bullen said this about the use of the mother bin:

“(d) Whether the Defendant’s claim for $3/T for the hire of mother bin is reasonable? In this regard, the Defendant has advised that the tractor was a John Deere 7520 150hp tractor with a 100T mother bin.
7.26 From my experience a 100.00 tonne mother bin with a john Deere 7520 150HP tractor with a driver and fuel would be a reasonably economic cost at $3.00 per tonne. However, just the provision of the machine i.e., the tractor and the mother bin without operator and fuel, I recommend the rate to be approximately $1.50 per tonne (dry hire).”
…
“(iv) a John Deere 7520 150hp tractor with 100T mother bin.
7.30 A charge rate of $130.00 per hour for a 100.00 tonne mother bin and John Deere 150HP tractor would be a reasonable rate while in use. As these mother bins are sitting idle for a large amount of the time while they are getting filled by the headers, often the charge rates relate to a tonnage rate. As discussed above, I recommend a rate of $1.50 per tonne for just the tractor and mother bin (dry hire) and $3.00 per tonne for mother bin, tractor, fuel and operator, are fair and reasonable costs in my opinion.”

In his report of 8 March 2021, which is Exhibit 12, Mr Michael Ryan said this at [18] on page 2370 of the Court Book:

“18. In my experience motherbins (with a tractor to drive the grain auger) are normally provided by the grower, not by the contract harvester. In my opinion a reasonable price to charge for a motherbin in late 2016 and early 2017 would by $1.50 per tonne plus fuel and GST. I say this based on my knowledge of agricultural contractor rates.”

In his report of 17 December 2021 which is annexed to his Affidavit, which is Exhibit 13, Mr Rod Gribble said this:

“Question 9: If a mother bin is not supplied by the grower, is it standard practice for the contractor to charge a separate rate for these items? If so, what was the recommended rate in 2016/2017?
It is not standard practice for a contractor to supply a mother bin. However, if this is the case, a fee per tonne is charged. ACH does not have a recommended fee of charge for a mother bin. However, $2-$3/tonne would be considered very cheap considering the benefit it provides to the grower. A 50-60 tonne mother bin costs about $60,000 to $80,000.
If the contractor also supplies a tractor and operator, an additional fee is charged. In my opinion a charge of $5/tonne would be very reasonable.”

The joint expert report on Exhibit Z, which commences on page 2447 of the Court Book says this on page 2460:

"KB and MR agree that $3 per tonne is an appropriate charge rate for a John Deere 7520, 125 HP with 100 tonne mother bin, assuming the provision of tractor and operator are included in this rate but excluding fuel. KB advised without provision of the operator; the dry hire rate of the mother bin would be $1.50 per tonne."

The Defendant claims the $3 rate, and the Plaintiff submits the $1.50 rate. The mother bin belonged to the Defendant. The mother bin was provided by the Defendant. Presumably, it was driven there by the Defendant and when its use stopped it was driven back to the Defendant's own farm after the conclusion of the Hawker's rice crop harvesting. It would have been driven by either Mr Brain or one of his family members. If it needed to be moved, it could have been moved by Mr Brain or one of his family members, or perhaps by some other member of the "team" that had been assembled, but there was not evidence that it was driven by either Mr Walsh or Ms Caryn Plant or Mr Andrew Plant. The likelihood is that it was operated solely by the Defendant.
The Defendant is not claiming any amount for fuel, so the $3 rate being claimed includes a rate for fuel. In the circumstances, I am prepared to allow the $3 rate claimed. 1,812.5 tonnes at $3 per tonne amounts to the sum of $5,437.50 which I allow for this item.

Items C8, C9 and C10

Item C8 is agreed in the amount of $5,800. Item C9 is agreed in the sum of $2,490.09. Item C10 is agreed in the amount of $2,525.68.

Item D11

The item numbered D11 is a claim for the provision by the Defendant to the Plaintiff of 36 tonnes of seed wheat at the rate of $230 per tonne. There is no dispute that the Defendant did supply to the Plaintiff 36 tonnes of seed wheat. The wheat was supplied by Mr Brain to Mr Walsh between May 2017 and June 2017 and on 1 July 2017 the Defendant issued an invoice to Mr Walsh for the amount claimed. The evidence of Mr Walsh, however, is that the price was too high at the time it was supplied to him. He noted that he sold ASW wheat harvested off Dalree for $170 per tonne and that ASW was the worst quality wheat harvested off Dalree in 2016.
He is, however, willing to concede a rate of $200 per tonne. This issue is easily resolved. The joint expert report, Exhibit Z, says on its 16th page, being page 2462 in Volume 6 of the Court Book, this:

"KB and MR agree a price of $230.00 per tonne is reasonable for seed wheat but are unable to validate tonnage and assume the price is excluding GST."

I have proceeded both in the Plaintiff's quantum meruit claim and in these claims without putting GST on anything. That is another issue which needs to be ultimately dealt with. The tonnage is not in issue. There is no reason for me not to follow what the joint expert report says. I therefore allow the amount claimed of $8,280.

Item D12

Item D12 is agreed in the amount of $1,080.

Item D13

The next item is item D13. The Defendant claims the sum of $2,640 for providing 12 tonnes of wheat screenings at the rate of $220 per tonne. The wheat screenings were used to feed the Plaintiffs ewes. That claim was made by Mr Brain in his Affidavit of 23 October 2020 which is Exhibit 1. The claim is made at [63] (c)(ii) which tersely says this:

"Wheat screenings (to feed Alan's ewes):
12 T at $220 per tonne equals $2,640.00 plus GST."

One of the annexures to this Affidavit that is referred to in the chapeau to [63](c) is to the exhibit on page 258 of the Affidavit on page 1232 of the Court Book, which is in Volume 3. The annexure is an invoice from J F Kennedy and Sons who provide seed and agricultural services. It is an invoice addressed to the Defendant bearing date 2 May 2017 for cleaning 56 tonnes of Berinda wheat at the rate of $30 per tonne and cleaning 102 tonnes of Corac or Corack wheat at the rate of $30 per tonne. Endorsed on the invoice is that it was paid by the Defendant on 31 July 2017. The total of the invoice excluding GST was $4,680.
The preceding page of the Affidavit was a tax invoice sent by the Defendant to Mr Walsh dated 1 July 2017 in which there is a clear error, but it also claims in addition to the wheat screenings the provision of wheat seed which has earlier been dealt with. In his Affidavit of 20 October 2021, which is Exhibit C, Mr Walsh said this:

"258. Seed grading is where you take the grain out of the silos and grade it to remove all the little bits of straw and broken bits of grain so you are left with just pure grain that can go easily through the air seeder (which is what is used next season to plant the seed). The rubbish that is left over is called 'wheat screenings'. From 36 tonnes of seed grading on good quality wheat, I would expect to get about 2 tonnes of wheat screenings. I know this from my knowledge and experience in farming as set out below...
259. The Brain's claim for 12 tonne of wheat screenings is disputed based on what I have set out in para 258 above. There is no chance that 12 tonnes of wheat screenings were removed from 36 tonnes of wheat. Ken Brain provided me with approximately 2 tonnes of wheat screenings, and I mixed those screenings with barley and fed it to my sheep. As Ken Brain alleges, I owe him for 36 tonnes of seed wheat referred to in para 258, I do not have to pay for the wheat screenings that was then graded out of the 36 tonnes of seed wheat."

In reply, Mr Brain in his Affidavit of 20 December 2021 which is Exhibit 5 said this at [111]:

"As to paras 256 to 259, Wendy and I sold wheat earlier in the year for the higher price. This is an average of the price we received for all our wheat. (Walsh's GHSH contract dated 21 April 2017). 36 tonne was the amount graded for Mr Walsh. We graded two silos of 45 plus tonne each. 12 tonne screenings was 90 plus tonne of stored grain. Mr Walsh took all of the 12 tonnes of screenings. I rely on the rates calculated by the independent experts we have engaged to calculate the value of our work."

Mr Walsh does not on the evidence that I have been referred to deal with that reply by Mr Brain. However, that enables me to ascertain that as Mr Walsh had paid for 36 tonnes of Corac wheat from which 2 tonnes of wheat screenings might be gleaned, that I should only allow for 10 additional tonnes of wheat screenings. The experts of the parties agree that wheat screenings may range in value between $180 and $220 per tonne depending on the quality of the screenings. I do not know anything about the quality of the screenings, so I believe it appropriate to allow 10 tonnes at the rate of $200 per tonne being the average of between $180 and $220. 10 tonnes at $200 per tonne is the sum of $2,000. That is the amount I allow for item D13.

Item D14

Claim D14 is a claim for $11,142.15 for the provision of 15 tonnes of fertiliser which is identified in MFI 12 as being Granulock 12Z at the rate of $742.81 per tonne. MFI 12 contains the Defendant's submissions, the Plaintiff's submissions in response and the Defendant's submissions in reply. The evidence about this item is extremely scanty. It is solely referred to in Mr Brain's affidavit of 23 October 2020 which is Exhibit 1, which commences at page 956 of Volume 3 of the Court Book, and the relevant paragraph is [63] of that Affidavit which can be found on page 969 of the Court Book. Leaving aside extraneous evidence, the relevant evidence is this:

"The expenses Wendy and I paid for and incurred in performing the general farming work for Alan on Hawker's from January 2017 totalled $33,461.63 plus GST. These costs included:
(c) from May 2017 to June 2017, we provided seed wheat for Alan to plant on Hawker's. The total cost of the seed wheat provided was approximately $23,108.55 plus GST. A copy of a tax invoice we issued to Alan dated 1 July 2017 for costs of the seed wheat is at p 257 of Exhibit KCB‑1. Copies of tax invoices we paid in respect of the seed wheat are at pp 258 to 259 of Exhibit KCB‑1. These costs are summarised below.
(iii) Fertiliser. 15 tonne Hirize Bulk Impact at $740.57 per tonne equals $11,108.55 plus GST."

The annexure to this Affidavit contains a statement made by Elders at Coleambally for the period 1 March 2017 to 31 March 2017. It contains two relevant entries. Each entry is dated 28 March 2017. The first entry is for the provision of 42 tonnes of Hirize Bulk Impact at the rate of $740.57 for which a charge was made of $31,082.41. The second entry again refers to 25 tonnes of Hirize Bulk Impact at the rate of $740.058 cents per tonne with a charge of $18,501.44. However, each is headed by a code which appears to indicate a March adjustment and the figures have a minus in front of them, even though they are a credit. This statement appears to indicate the purchase of a total of 67 tonnes of Hirize Bulk Impact, which it appears is a fertiliser. That is so stated in [63] of Mr Brain's Affidavit which I have quoted.
There is no evidence put on by the Plaintiff that he was not provided with the fertiliser. Clearly, the Defendant had sufficient of this fertiliser to provide some of it to Mr Walsh if he wanted it. There is sworn averment from Mr Brain that it was provided to the Defendant as a cost incurred in performing general farming work for the Plaintiff on Hawker's after January 2017. It is possible that having bought the fertiliser in bulk there was sufficient for the Defendant to use it on the Hawker's farms or to provide it to Mr Walsh for him to use it on the Hawker's farm. Without there being any evidence to say that it was not received or was not that much was received, I cannot accede to the submissions as being put to me by the Plaintiff.

The only other evidence concerning this that I have been taken to is a statement in the joint expert report which is headed "Fertiliser ‑ 15 tonnes Granulock 12Z at 4742.81 per tonne". The joint expert comment is this:

"KB and MR agree price at 740.06 per tonne excluding GST is reasonable price in 2016‑2017 as per invoice the Hirize Bulk Impact invoices for 42 and 25 tonnes. No comment on volume claimed.”

In the circumstances, I have to allow for 15 tonnes of this fertiliser at the rate of $740.06. That sum is $11,100.90.
The total of the sums I have allowed thus far is $344,015.17.

**********

Decision last updated: 04 June 2024

Medium Neutral Citation:	Walsh v KC & WL Brain Pty Ltd (No. 4) [2024] NSWDC 199
Hearing dates:	30 January 2024 - 2 February 2024
Date of orders:	2 February 2024
Decision date:	02 February 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See par [141].
Catchwords:	Defendant did certain work and provided certain goods for Plaintiff - No agreed rate for charges - Claim by defendants for restitution - Quantum meruit - Rulings on 14 of the 15 claims made by Defendant.
Legislation Cited:	Nil.
Cases Cited:	Mann v Paterson Constructions Pty Ltd [2019] HCA 32, [203].
Texts Cited:	Nil.
Category:	Consequential orders
Parties:	Plaintiff – Alan David Walsh Defendant – KC & WL Brain Pty Ltd
Representation:	Counsel: Plaintiff – Mr Gunning, M. Defendant – Mr O’Connor, J. Solicitors: Plaintiff – Rural Law Defendant – Walsh & Blair Solicitors
File Number(s):	2020/00107856
Publication restriction:	Nil.

1st period of harvest	7 - 18 April 2017
Number of days work	11 days (all expect [sic] 14th)
Total harvested	2,299.82 tons
Tons per day	209.07 tons (2,299.82 / 11)
Each header tons per day	69.69 tons (209.07 / 3)	104.5 tons (209.07/2)
Tons per header per hour	8.7 t/hr (8 hrs day)	13.0 t/hr (8 hrs day)
6.7 t/hr (10 hr day)	10.4 t/hr (10 hr day)
5.8 t/hr (12 hr day)	8.7 t/hr (12 hr day)

2nd period of harvest	24 April 2017 t0 [sic] 10 May 2017
Number of days work	16 days (all expect [sic] 27 April)
Total harvested	2,067.4 tons
Tons per day	129.21 tons (2,067 /16)
Each header tons per day	43.07 tons (129.21 / 3)	64.6 tons (129.21/2)
Tons per header per hour	5.3 t/hr (8 hrs day)	8.0 t/hr (8 hrs day)
4.3 t/hr (10 hr day)	6.4 t/hr (10 hr day)
3.5 t/hr (12 hr day)	5.3 t/hr (12 hr day)

3rd period of harvest	14 May 2017 to 18 May 2017
Number of days work	5
Total harvested	369.7 tons
Tons per day	73.94 ton (369.7/5)
Each header tons per day	24.6 tons (73.94/ 3)	36.97 tons (73.94/2)
Tons per header per hour	3.0 t/hr (8 hrs day)	4.6 t/hr (8 hrs day)
2.4 t/hr (10 hr day)	3.6 t/hr (10 hr day)
2.0 t/hr (12 hr day)	3.0 t/hr (12 hr day)